City plays tune of eminent domain: Hays KS Daily News, 8/24/07

By Karen Mikols

In a unanimous vote, the Hays City Commissioner took the first step in exercising its right of eminent domain.

This is the first time in approximately half a dozen years the commission began proceedings to seize personal property for development within the city.

"We don't want to do this," Vice Mayor Barbara Wasinger said. "We really don't."

The commission approved both a resolution and ordinance to condemn Jude's Piano and Organ Co., 2200 Canterbury, to begin a $2.4 million project that will connect Canterbury to Commerce Parkway via 22nd Street.

Property owner Judith "Jude" Scheck said the offer is not adequate.

"The initial offer is still standing at $63 per foot," she said. "I cannot find a contractor that will build for $63 a foot."

She said contractors have told her it costs $135 per foot to build residential buildings.

"There is also heavy wiring because every so many electronic units have to have a breaker box," Scheck said. "So there's no way I can build for $63 a foot."

According to the Ellis County Appraiser's office, Scheck's property, which includes her home and business, is valued at about $201,000. City Attorney John T. Bird said the city wants to acquire about 7,000 square feet of Scheck's property and has offered adequate compensation, but she wants about six times more than the city is offering. Since no agreement has been reached, Bird said the city is proceeding to the next step, which is condemnation.

"Three appraisers are appointed through the court," Bird said. "If that appraisal price is unsatisfactory to the owner, then the owner has the right to appeal it to a district court jury to have it decided."

He describes the process as one with "ample due process in it."

"Without question, it is the harshest use of power by government we have, but that's why we have the safeguards in place," Bird said. "It's not anything we take any pleasure in, but it's the only way we can build infrastructure in the city for the common good.

"We hold out hope that before the process plays out all the way that the parties can get together and resolve the differences."

Mayor Troy Hickman said constructing 22nd Street from Canterbury to Commerce Parkway has been in the works for about five years.

"We're planning ahead," Hickman said. "We've started and are still building utilities out to Commerce Parkway to stir the economic growth in that direction."

He pointed out the Army Reserve Center now is on Commerce Parkway, and developing 22nd Street will help with access to Hays Medical Center.

Even if there isn't development now, Hickman points to a similar effort north of Interstate 70.

"Ten years ago, there was an antique car museum and gas station north of I-70," Hickman said. "Part of the reason was that there were no utilities and no streets. We built utilities and streets, and look what happened. We want to try to encourage development to the east. You're not going to have development without streets and utilities."

Bird said the city initiated the eminent domain process for the reconstruction of Hall Street in 2001.

"We filed a condemnation on Hall Street, but it was never served because we settled it almost immediately," he said. "The time before then was in the '80s, when we were doing an expansion at the airport runways."

During the discussion, Commissioner Ron Mellick asked Bird to differentiate between this current action and the ordinance passed in November 2005 that restricts the city's ability to use eminent domain.

"Your predecessor commission passed an ordinance that said you are not to use the power of eminent domain to turn around and give the property to another private entity," Bird said. "It's only to be used for building purposes. It doesn't affect us here because we're taking it for a street."

Hays KS Daily News: http://www.hdnews.net

New Guide to Help Spanish Speakers Save Their Homes and Businesses: Institute for Justice, 8/23/07

Spanish-speaking communities across the country now have access to the most effective strategies to fight eminent domain abuse -- the forcible acquisition of property by the government for private development. The Castle Coalition's new Spanish language version of its popular -- and award-winning - Eminent Domain Abuse Survival Guide, the Manual de Supervivencia contra el Uso Abusivo del Dominio Eminente, provides Spanish speakers with the same strategies and tactics that home and small business owners nationwide have used for years with great success to keep what they own.

The Manual de Supervivencia is especially useful in explaining the concept of eminent domain abuse, which the U.S. Supreme Court ruled was constitutional two years ago in Kelo v. City of New London. This translation helps navigate threatened property owners through the eminent domain process, giving readers to tools they need to fight back. In addition, it provides Spanish speakers with the English vocabulary they will encounter as they defend their property. The Manual de Supervivenciais available at http://www.castlecoalition.org/Espanol.

"In the past, the Spanish-speaking population has had limited access to the vital information necessary to save their homes and small businesses from eminent domain abuse," said Steven Anderson, director of the Institute for Justice's Castle Coalition. "With the Manual de Supervivencia, those days are now over."

This publication is particularly timely because many of the states that received low or failing grades in the Castle Coalition's 50 State Report Card have large Spanish-speaking populations, like New York, New Jersey and California. Additionally, as Justice O'Connor predicted in the Kelo decision and as the Institute for Justice's Victimizing the Vulnerable: The Demographics of Eminent Domain has proved, minorities remain the most likely victims for eminent domain abuse. The Manual de Supervivencia is yet another tool to empower the politically weak against the strength of local governments.

"With this translation, we are not only providing a new tool for home and small business owners facing the abuse of eminent domain, we are moving ever closer to ending the practice altogether," Anderson concluded.

Institute for Justice: http://www.ij.org

Eminent domain efforts may backfire: Wilmington DE News Journal, 8/23/07

Law city cites could favor property owners

By Adam Taylor

A controversial city plan to use eminent domain to condemn as many as 62 properties would follow a Supreme Court precedent set in one of the most famous cases of its kind, experts on the issue say.

But the Delaware law the city is using to justify its plan, as well as a newer, untested state law, could help a group of property owners fend off the condemnation attempt.

Wilmington City Council will vote tonight on a plan that would allow the city to acquire the properties and sell them to private developers to be redeveloped in line with other urban renewal efforts in the area. Using economic development as a justification for exercising eminent domain reflects a growing national trend away from the more traditional reasons for invoking the law: widening roads or building schools, hospitals or libraries.

Precedent for using economic development to justify invoking eminent domain was set in 2005. In Kelo v. New London (Conn.), the U.S. Supreme Court found the communitywide benefits of taking property for that reason constituted a "public use" along the same lines of taking property to build roads or schools. The case pitted homeowner Susette Kelo and 114 other property owners against New London's government, which wanted to use the properties in a larger redevelopment plan. Pfizer Corp. had built a large research facility near the properties and the city wanted to keep up the momentum from that project.

The motivation in Wilmington is the same. The area in question is across the street from the $200 million Christina Landing residential development. City officials want to redevelop the nearby properties in ways that would create a higher tax base than the current uses, said Widener law professor Tom Reed, a property rights expert, and Christina Walsh of the Institute for Justice, the nonprofit that litigated the case for Kelo.

The key difference between New London and Wilmington, they said, is the law being used to invoke the power of eminent domain.

The Connecticut law upheld by the Supreme Court allows eminent domain to be used to transfer property from one private owner to another to further economic development.

Wilmington is trying to use eminent domain under the state's Slum Clearance Redevelopment Act. To condemn a property under that law, the city must prove there is a shortage of housing in the area, that the properties represent neighborhood blight, and that the acquisition of the properties is needed to meet new community objectives.

But the intention in the New London and Wilmington cases is the same, Walsh said.

"In Wilmington these hard-working, tax-paying businessmen could lose their properties to wealthy developers," she said.

Reed too, said the city's intention is clear: Leaders want to "recycle" the properties - now owned by 50 people and including 38 businesses but no residential lots - into wealthier hands, he said.

Laws could aid property owners
Wilmington attorney Rich Abbott, who is representing a group of the South Wilmington property owners who have banded together to fight the city's effort, said most of the properties are not blighted. He expects that to be one of the things he will argue if the matter ends up in court, which he said is a virtual certainty if the council passes two eminent domain-related measures tonight.

"The Achilles' heel of the city argument is that the area in question is blighted," he said. "I don't think it is [blighted], and the city to this point certainly hasn't demonstrated that it is."

Existing state laws also could strengthen the property owners' case, Reed said.

The city's plan involves amending the South Walnut Street Urban Renewal Plan to rezone the 62 properties from manufacturing to mixed-use designations, specifically prohibiting the properties' existing industrial uses.

However, doing that would mean properties in the South Walnut Street area having more use restrictions than businesses in other areas of the city with the same mixed-use zoning designation. That's illegal under state law, Abbott said.

A new Delaware law, passed in response to the Kelo v. New London case, could further help the property owners, Reed said. The law is designed to limit government's ability to abuse its power of eminent domain, but it hasn't been tested in the courts, he said. Also, there is some decades-old Delaware case law that indicates the state Supreme Court has been skeptical of the policy of taking properties in order to give them to people who would generate more tax money.

"Put those together and you've got an argument," Reed said.

But it's an argument that would likely fare best in the Delaware Supreme Court, he said. Given the decision in the Kelo case, Reed predicted the Wilmington property owners would lose if they tried to fight the condemnation plan at the federal level.

City Economic Development Director Joe Di Pinto said the changes are needed for South Wilmington's future.

"It's a necessary amendment for not just the South Walnut Street Renewal Area, but for Southbridge as well," he said. "The efforts we're making on both places are complementary to each other."

Billboards and petitions
The business owners already have launched a publicity campaign against the city's plan.

Eleven signed a petition Wednesday that tells the city they will not negotiate under the threat of condemnation. They will take the city to court instead.

"I don't like being threatened," said Mike Hill of Shellhorn & Hill Oil, which has employed 50 people on South Market Street since 1979. "But I'm never going to be able to negotiate a fair deal if the buyer knows that in the end I'm going to have to sell whether I like the final deal or not."

Hill bought radio spots that compare the city to a communist regime and likens the proposal to American Indians being put off their land.

Ed Osborne of Osborne's Auto Service paid for a billboard on Martin Luther King Boulevard that asks the council to vote against tonight's proposals. Wednesday, he hired a billboard truck with two similar messages to drive around the city.

"All a council or mayoral candidate needs next year is name recognition, a little money and an issue," Abbott said. "My clients are giving someone one of those three things."

Approach failed elsewhere
That approach worked in Coatesville, Pa., where hundreds of millions of dollars in revitalization plans were derailed after a failed bid to take Dick and Nancy Saha's farmhouse as part of a plan for a new golf course. While the Sahas' spent $300,000 fighting in court, anti-eminent domain candidates unseated incumbents on City Council and the citywide development plans were scrapped.

In Ardmore, Pa., local government officials wanted to bulldoze 10 businesses and replace them with a chic strip of ground-floor retailers with condos atop them. The politicians backed down last year after a series of grass-roots rallies and protests, Walsh said.

Wilmington Councilman Charles Potter Jr. said he will vote against the proposals. Eminent domain should only be used for public projects, he said. Councilman Kevin F. Kelley Sr. will vote for it, saying that he believes the majority of 50 property owners don't object.

Jeff Flynn of the city's office of economic development said the proposed measures are vital to continue revitalization efforts along the Christina Riverfront. Using eminent domain would be a last resort. The city would prefer to negotiate a fair deal with the property owners instead, he said.

"If you adopt the plan, you're adopting a vision, not necessarily condemnation," Flynn said. "This notion that the city is going to abandon business owners is just not true."

Wilmington DE News Journal: http://www.delawareonline.com

Blunt names Martin Eminent Domain Ombudsman: St. Louis MO Business Journal, 8/23/07

Missouri Gov. Matt Blunt said Thursday that he named Paul Anthony Martin as Missouri's Eminent Domain Ombudsman, where he will advocate on behalf of private property owners in safeguarding their land.

New eminent domain laws created the Eminent Domain Ombudsman position, which is within the office of Public Counsel within the Department of Economic Development.

Martin will travel throughout the state advocating on behalf of Missouri property rights and safeguarding the landowner bill of rights. He most recently served as a prosecutor in the United States Office of Special Counsel in Washington, D.C.

Martin has also worked as a law clerk in the office of U.S. Sen. Jim Talent.

St. Louis MO Business Journal: http://www.bizjournals.com/stlouis

Second Route 980 hearing scheduled: McMurray PA Almanac, 8/22/07

Many of the [McMurray] residents who attended a public hearing Aug. 13 about changing a portion of Route 980 from residential to commercial said they were "in the dark" about development plans in that corridor.

Some said they were concerned about the possibility of eminent domain, while others worried about the traffic that may be created by a business moving into the area.

After more than an hour of discussion, Councilman George Coleman made a motion to deny the zoning change. Solicitor Pat Derrico quickly informed council that votes were not permitted at a public hearing.

When council convened its regular meeting, Councilwoman Jean Popp made a motion to table the item so another public workshop could be held. Councilman Joe Milioto seconded the motion, which was unanimously approved. No date for the workshop has been set.

Popp said Aug. 15 that she felt as though more information on both the developer and the project should be gleaned before a decision is made.

"We didn't have a lot of information," she said. "There were so many unknowns."

Popp added that the high turnout at the hearing and number of issues raised prompted her to make the motion.

"There were too many concerns," she said.

About 100 residents turned out to learn more about the possible zoning change, although borough Manager Terry Hazlett said Wednesday that much of the concern may be unfounded.

As for residents being "in the dark," he said little information is available regarding development on a piece of property owned by Angelo Falconi.

Hazlett said there is a proposal for a developer to build a small grocery store on the site, but that's all it is - a proposal.

"There is nothing to be in the dark about," he said.

And residents concerned that the borough would be able to seize their property via eminent domain? No worries, Hazlett said.

"The state has made it clear that you can't impose eminent domain haphazardly like they have in the past," he said. "Canonsburg Council itself is opposed to eminent domain, as is the Washington County Redevelopment Authority."

The borough has had the opportunity to seize property through eminent domain in the past and declined, Hazlett said.

Traffic, meanwhile, might actually improve if the area were commercially developed.

Council, he said, has tried repeatedly to gain approval for a stoplight in the area of Route 980 and Gladden Road.

"We have been turned down by (the state Department of Transportation) every time," Hazlett said, adding that traffic studies have not warranted a light at that intersection.

But, he said, a commercial development would increase traffic, which "would certainly warrant a light."

What's more, Hazlett said, is that the business moving into the area might be required to make traffic improvements that could include the installation of such a signal. And that would save Canonsburg some cash.

"Right now, the borough doesn't have $100,000 to put in that light, even if we had approval," he said.

Hazlett said the commercial designation also would help satisfy numerous requests for retail space in the borough

McMurray PA Almanac: http://www.thealmanac.net

Financial Firm Swept Up In Eminent Domain Decision in Brooklyn: Brooklyn NY Daily Eagle, 8/22/07

City Has No Project to Replace 150-Employee Firm

By Sarah Ryley

The future of a financial services firm and its 150 employees is fraught with uncertainty now that the city has approved the use of eminent domain to seize the company’s building within the BAM [Brooklyn Academy of Music] Cultural District.

The Department of Housing Preservation and Development (HPD) issued its eminent domain ruling on Monday, which concerned Track Data Corporation’s property along with 20 others on three blocks in Fort Greene and Downtown Brooklyn. There is no project planned to replace Track Data, which set up shop at 95 Rockwell Pl. two decades ago, “when there were crack vials on the ground and nobody wanted to come here,” said one employee.

Now, the city has the area earmarked as the BAM Cultural District, eight blocks in Downtown Brooklyn dedicated to cultural programming anchored by the Brooklyn Academy of Music.

A spokesman for the Downtown Brooklyn Partnership, the non-profit overseeing downtown redevelopment, said Track Data’s property would eventually house a mixed-use building with cultural facilities on the ground level and affordable and market-rate housing. He said the city would probably start seeking developers for the site later this year.

“It’s not pleasant to have the Sword of Damocles hanging over your head,” said Track Data spokesman Rafi Reguer, lifting an expression from classical Greek mythology often used to describe the ever-present threat of peril.

Track Data is a small firm that provides financial services similar to Bloomberg, L.P. — the company that made the mayor a billionaire — but with less than 1 percent of Bloomberg’s $4.7 billion in annual sales. Reguer said the company is unsure if it would appeal the eminent domain ruling, as its attorneys advised that the courts would most likely side with the city. “You could pretty much count on one hand the number of times the court reverses [an eminent domain decision by the city], and still be able to snap your fingers,” he said.

So far, Reguer said the company hasn’t received a relocation offer — which he said is strange given that the city is always looking to recruit and retain financial firms.

But Track Data is not at a loss for suitors. Reguer said economic development entities in New Jersey, the South and Canada are constantly trying to woo the firm to relocate within their borders.

If the company has to move out of state, “it’s going to be a big upheaval,” said IT director Brian O’Reilly, who has been with the company since the beginning. “We don’t really know how it’s going to affect our coworkers,” whether they’d have to uproot or find new careers here, he said.

Reguer added that, if a developer had approached Track Data offering to buy the building, the company would have probably sold at the right price. But now, Track Data is forced to take the price the city offers. “Our company operates in a market-based economy, and in a market-based economy two people decide what [a property is] worth,” he said.

Seth Donlin, an HPD spokesman, said relocation assistance is offered to all parties forced to move due to eminent domain proceedings, and that the amount of assistance “is calculated on a per case basis and takes into account the cost of moving, and in some cases storing, heavy equipment.”

In the case of Track Data, Donlin said eminent domain is used to obtain consolidated pieces of property so comprehensive redevelopment plans can be realized, rather than seizing properties in a piecemeal fashion as the various phases of development progress.

Of the 21 properties included in this week’s eminent domain ruling, eight are in the BAM Cultural District. The others are on Duffield and Gold streets in Downtown Brooklyn, including homes allegedly once involved in the Underground Railroad, and would be replaced by a one-acre park and underground parking garage.

Four of the eight lots within the BAM Cultural District have planned developments, according to information provided by the Downtown Brooklyn Partnership. A theatre for Danspace and 350 residential units are in the planning process; the Frank Gehry-designed Theatre for a New Audience is in the approval process; and a small park is proposed atop one of the parking lots.

Forté, a 28-story, Flatiron-style residential tower by The Clarett Group, and a residential conversion at 96 Rockwell St.— both market-rate condominiums — are under construction in the vicinity.

Brooklyn NY Daily Eagle: http://www.brooklyneagle.com


Protecting property rights: Raleigh NC News & Observer, 8/21/07


By Daren Bakst

Pick any state other than North Carolina and you'll find much greater protection of property rights. Yet when the state House recently attempted to address two major property rights issues - eminent domain and forced annexation - there was one huge obstacle in the way: the state Senate.

In 2005 the U.S. Supreme Court, in the Kelo v. City of New London (Conn.) case, held that government could take property for economic development reasons.

In reaction, many states have taken steps to provide their citizens greater protection against eminent domain abuse. Last year seven states, including Georgia and South Carolina, passed constitutional amendments limiting government's eminent domain powers.

And in late May, the N.C. House of Representatives overwhelmingly endorsed (104-15) a constitutional amendment to protect North Carolinians from having their homes and other property seized for economic development.

The bipartisan vote showed that the need for eminent domain reform here is widely recognized. North Carolina, more than any other state, needs a new eminent domain constitutional amendment. Ours is the only state constitution that doesn't expressly include any eminent domain protection.

Opponents of eminent domain reform say there's no need for an amendment. To them, existing legislation is adequate to protect our property.

This argument is disingenuous at best. Following this logic, North Carolinians wouldn't need to have any rights protected in the state constitution, since legislation could protect all of our rights. I doubt anyone concerned about individual rights could make that argument with a straight face.

Eminent domain abuse doesn't just involve property rights. It also involves civil rights, particularly when it comes to urban renewal laws. Governments have used "blight" as an excuse for taking property for economic development. In urban renewal laws, "blight" is defined so broadly that almost any property could be taken.

The effects of blight laws have been disastrous, particularly for minority communities. In testimony to the U.S. Senate, Hilary O. Shelton, the NAACP's Washington Bureau director, explained that "Indeed, the displacement of African-Americans and urban renewal projects are so intertwined that 'urban renewal' was often referred to as 'Black Removal.'"

Despite all of the reasons to pass a constitutional amendment, the state Senate simply ignored the House legislation that proposed one. The Senate leadership sent the amendment bill to the Ways and Means Committee, which hasn't met since 2001. In other words, they tried to kill the amendment.

The Senate also has shown disregard for property rights through its actions on another major issue that also happens to have significant civil rights implications.

Forced annexation involves the power of cities and towns to take over adjacent unincorporated communities against the will of the people living in those communities. Opponents of forced annexation want to get rid of this backward practice. North Carolina is one of only a handful of states that still has forced annexation.

Unfortunately, neither the House nor the Senate has been willing to take on the powerful municipal lobby, which is subsidized by taxpayer dollars. However, the House was at least willing to study the issue of forced annexation. The Senate, from all accounts, opposed even a study of forced annexation.

Too many senators apparently think that there's nothing wrong when communities that don't need urban services from a city are forcibly annexed, while areas that do need services are ignored.

Apparently it isn't worth senators' time to consider two recent studies, one from the Cedar Grove Institute for Sustainable Communities and another from the UNC Center for Civil Rights. Both found that, while not necessarily intentional, minority communities are being excluded from municipalities.

Apparently it doesn't raise alarms when a Goldsboro City Council member argues (in a 2001 letter) that was admitted into a court docket, that "... Goldsboro (the city) is not growing, especially our young white families and according to the census, we might even be losing people. Thus the annexation of this area would not only add good tax base to Goldsboro, it would also help us keep our racial make-up in check, which in my opinion is very important to our future."

Next year, the Senate can redeem itself by showing it does care about North Carolinians' fundamental rights. I hope more senators will be brave enough to fight for constituents and not for municipal power.

Raleigh NC News & Observer: http://www.newsobserver.com

Daren Bakst is legal and regulatory policy analyst for the John Locke Foundation: http://www.johnlocke.org

Eminent domain ruling due next month: Cincinnati OH Enquirer, 8/21/07

Attorneys argued in court Tuesday over how much one of the victors in the Norwood eminent domain case should be compensated for damage to the house they had converted into a math and reading learning center.

Attorneys for Norwood and the Rookwood Partners said Sanae Ichikawa-Burton and Matthew Burton must pay back the $96,000 that had been withdrawn from money the Rookwood Partners had set aside to buy their property.

Attorneys for the Burtons argued that Norwood and Rookwood Partners are responsible for damage to the former learning center approximately equal to the $96,000 withdrawal.

Hamilton County Common Pleas Judge Beth Myers said she will issue a written ruling no later than Sept. 25.

The attorneys for the Washington, D.C.-based Institute for Justice, which is representing the Burtons, participated in the hearing by conference call.

Bad weather had caused their flight from Washington, D.C., to Cincinnati to be cancelled.

More than a year ago, the Ohio Supreme Court ruled that Norwood had illegally seized the property of the Burtons and two other parties on the proposed Rookwood Exchange site at Edwards and Edmondson roads in Norwood. The court ordered the properties returned to the owners.

Since then, the Rookwood Partners bought and demolished the former home of Joy and Carl Gamble Jr.

The only remaining structures on the 11-acre site are Burtons’ former learning center and Joe Horney’s rental house. Both have been vacant for more than two years.

Rookwood Partners owns the rest of the site, but it hasn’t built the planned Rookwood Exchange office, retail and condo development because of the presence of the two remaining buildings.

Before the Ohio Supreme Court’s landmark decision last year, Rookwood Partners had placed $500,000 in a court-controlled account to buy the Burtons’ parcel.

With the permission of Common Pleas Court, a bank withdrew $96,000 from Rookwood Partners’ account to cover the mortgage owed on the property by the Burtons.

Tim Burke, attorney for Norwood, and Brian Pacheco, attorney for Rookwood Partners, said the Burtons should repay the $96,000 and $14,000 in interest.

Bert Gall, an attorney with the Institute for Justice, said the Burtons should be compensated for damage to the property since Norwood seized it and turned it over onto the Rookwood Partners more than two years ago.

They also said the Rookwood Partners should pay taxes due on the property and lost potential rent money.

“The Burtons simply want to be made whole,” Gall said.

But Tim Burke said the Burtons caused damage to the walls and ceilings when they removed light fixtures and the water heater from the former learning center.

“The Burtons have had ownership of the property for about 11 months,” Burke said. “They have done nothing until very recently to put it back into a habitable condition.”

Cincinnati OH Enquirer: http://news.enquirer.com

Oil pipeline builder seeks eminent domain: Bloomington IL Pantagraph, 8/20/07

By Scott Miller

A Canadian crude-oil transporter requested eminent domain to construct a pipeline through McLean, Livingston and DeWitt counties, and landowners intend to fight.

In its application filed with the Illinois Commerce Commission late last week, Enbridge Inc. said it plans to first negotiate with landowners and that the eminent domain power is “sought only in the interest of efficiency … to meet public need for crude petroleum.”

The application for a certificate of good standing, which allows for eminent domain, is just the first step in the regulatory process, said Enbridge spokesman Joe Martucci.

“We have to demonstrate with the ICC that we have negotiated in good faith with landowners before they’ll even consider (eminent domain),” he said.

Negotiations won’t begin until next month, Martucci said. The project affects about 95 landowners in McLean County, 68 in Livingston County and 65 in DeWitt County.

A bloc of eastern McLean County landowners, meanwhile, plans to fight the company’s request with the ICC. They hired Bloomington estate attorney Mercer Turner to represent their interests, said landowner Margaret Clement.

Clement and family members organized the group Family Farmers Wanting Responsibly Planned Pipelines. Around 60 people joined their group, Clement said. They fear an oil spill and want to make sure the company maintains the fertility of farmland during and after construction.

Turner was unavailable Monday.

Interested parties have about three months to submit testimony to the ICC on this matter, said ICC engineer Eric Lounsberry, speaking during a landowners’ meeting on the issue in July. The ICC will then have a formal hearing where parties can cross examine witnesses.

The ICC will also have a public hearing, said spokeswoman Beth Bosch. At this point, no hearings are scheduled, and Bosch said the ICC proceedings could last a year.

All documents filed in the case are accessible at www.icc.illinois.gov/e-docket. The case number is 07-0446.

Enbridge wants to construct a 170-mile pipeline east of Bloomington-Normal from Pontiac to Patoka. The line would funnel about 400,000 barrels of Canadian crude daily to refineries throughout the Midwest and the Gulf Coast. Construction is slated to start in 2008, with the pipeline transporting crude in 2009.

To receive eminent domain powers, Enbridge must convince the ICC there is a public need for more crude oil. In its application, Enbridge said the pipeline can reduce reliance on politically volatile Middle East imports coming into the Gulf Coast. Canadian crude, Enbridge added, is not vulnerable to the hurricane disruptions that caused supplies to dwindle and prices to skyrocket following Hurricane Katrina in 2005.

Earlier this year, the ICC granted Enbridge eminent domain rights for a similar project in northern Illinois.

Bloomington IL Pantagraph: http://www.pantagraph.com

Kent nears next step in downtown redevelopment Asembling land for project: Ravenna OH Record-Courier, 8/19/07

By Matthew Fredmonsky

In a little more than 30 days, the city of Kent will be one step closer to a redevelopment project in the heart of downtown.

After Sept. 19, the city can finalize a purchase agreement to buy the Kent Hardware building and surrounding property owned by Demmer Enterprises for $365,000.

About a month's time will give the city official at the center of the purchase, City Manager Dave Ruller, time to think about consulting Kent City Council and that next step.

"Obviously we're assembling the land for the purpose of redevelopment," Ruller said. "The question then becomes trying to market the site. We have some choices we'll have to make and, honestly, some of those conversations are happening now."

Currently, seven entities own property in the block.

Those owners are the city of Kent, Kent State University, Demmer Enterprises, the Ricciardi family, TransOhio Properties, Right Dimensions and Jim and Nancy Arthur. After the agreement is finalized, six property owners will remain.

The city is currently working to implement eminent domain and seize three parcels owned by Right Dimensions. That would trim the number of property owners to five, with the city either owning, or having options on, the majority of the land within the block.

In April, council approved paying for an option on three properties owned by Josephine and Rosario Ricciardi. The properties are: 200 S. DePeyster St., the BarCode nightclub; 126 Erie St., the house next door to BarCode; and 205 S. Water St., formerly Jerry's Diner. Those lots, combined with land the city already owns, would give the city ownership of nearly every lot north of the alley dividing the block.

If it is successful in implementing eminent domain and purchasing the Right Dimensions property, the city would own more than half of the lots south of the alley.

Ruller said he would rather not wait on the eminent domain process before moving forward with the project.

"At this point we've got the majority of the site," he said. "The city should take more of a step forward in marketing the project."

However, Right Dimensions President Andrew Lombardo has said his firm intends to fight the city's eminent domain decision. His firm attempted to redevelop the block, but the project stalled largely because of the firm's failure to acquire all the property.

Council authorized moving forward in the eminent domain process last week - despite an offer Lombardo made in a letter to sell his property for $550,000.

Ruller said KSU is a potential partner for the project and he is trying to gauge what interest, if any, the university may have in building in the block.

He said a hotel and conference center, constructed in part with the university, would strengthen a redevelopment project.

KSU President Lester A. Lefton, in several speeches, has expressed an interest in partnering with the city to improve downtown. When Lefton addressed a crowd in November 2006 for the annual Bowman Breakfast, a town-and-gown tradition in Kent since 1963, he said a first-class hotel and conference center would help "ensure Kent is a vibrant, student-friendly college town ... shopping, dining and entertainment mecca."

The university owns approximately five parcels in the block's southern end.

KSU Senior Vice President for Administration David Creamer said in an e-mail Friday the university remains aligned with the city in its goals for redevelopment downtown.

"A hotel and conference facility continues to be a major part of this vision, although the exact location and ownership of these facilities continues to evolve in the discussions," Creamer said. "While nothing is immediately imminent, progress has been made in the last few weeks that is very encouraging," he said.

Ruller said he understands people will be skeptical of any project there based upon past negotiations with Right Dimensions. He is confident to have learned from those mistakes.

"When I got here everybody said this was a project that has to happen," said Ruller, who was seen strolling the block Friday morning. "We put a lot of focus on it in the last 24 months. A lot has changed, but it's on a track where it can lead us to where we want to go."

Ravenna OH Record-Courier: http://www.recordpub.com

PPL crossed the line: Philadelphia PA Intelligencer, 8/17/07

By Jenna Portnoy

Power giant PPL's proposal to run transmission lines through preserved open space in Richland could strike a blow to conservation programs at the same time Bucks County's open space program looks to expand.

The utility company wants to buy land in the path of the lines, including a stretch through a county-preserved 106-acre wooded property known as the Kelly tract located at Heller and Pumping Station roads and bisected by the Tohickon Creek.

PPL has agreements with 29 of 39 property owners. For the holdouts, utility spokesman Kathy Frazier said, the company would invoke eminent domain as a “last resort.”

Eminent domain could take precedence over deed restrictions preventing development on land preserved as open space.

“By the definition of eminent domain they can build wherever they want to,” said township Supervisor Mike Zowniriw. “No matter how the deed is restricted, eminent domain supersedes everything.”

County commissioners aren't so sure. They said so in a letter to PPL on Wednesday: “The proposal to remove the woods would violate the easement, do serious environmental damage to the land and strike a blow to the cooperative preservation program throughout Bucks County.”

Richland purchased the land in January 2004 thanks to a $250,000 grant from the county, said Kris Kern, the county's open space program coordinator.

Commissioner Jim Cawley said the county has yet to do extensive research as to whether eminent domain trumps a conservation easement.

“We're hopeful that we're not going to have to (research the matter),” he said. “But if we do, we are prepared to do that, and we will work vigorously to preserve land that was preserved with county taxpayer dollars.”

Voters in the fall will decide whether to borrow $87 million for another decade of open space preservation.

County spokesman Chris Edwards said the county solicitor would not comment on how PPL's plan could affect future open space preservation efforts until the utility clarifies where the line will go.

Frazier said PPL is reviewing the letter from the commissioners. Erecting high tension power lines between Coopersburg and Quakertown by acquiring private properties will cost $12 million, she said.

Nothing in preliminary environmental surveys would make the company rethink its plan, but more testing must be done, she said. Alternative proposals to put lines along Route 309 and a former Southeastern Pennsylvania Transportation Authority line would cost $25 million and $31 million, respectively, she said.

Line costs would be passed to PPL's 1.4 million rate-paying customers. The state Public Utility Commission must give PPL permission to erect the line.

When the county and township agreed to preserve the Kelly tract, they couldn't have planned for all possible contingencies, said Richland's Zowniriw.

“A utility company doing something like this is not something you could plan ahead for,” he said.

But development, by a utility company or anyone else, is exactly what property owners hope to prevent when they sell development rights.

Richland Supervisor Rick Orloff stressed that the township has no control over PPL, which says it needs the transmission lines to meet growing power demand in the region.

About a quarter of the Kelly tract will be opened in spring 2008 as Veterans Park, which will include six ball fields, a tot lot, walking trails and concession stands, he said.

“In the end, a power line is going to go through,” he said. “We can either get criticized for losing a couple acres of open space and because it's on someone's private property, or there's a blackout affecting 15,000 residents.”

Philadelphia PA Intelligencer: http://www.phillyburbs.com

Eminent domain ballot issue eyed Measure would apply rule to cities: Bedford OH Record-Courier, 8/17/07

By Marc Kovac

An Akron-area Republican this week reintroduced a ballot issue that would allow voters to decide whether eminent domain laws should apply in Ohio's cities.

State Sen. Kevin Coughlin, from Cuyahoga Falls, said Senate Joint Resolution 3 is essentially identical to SJR 1, which he introduced at the start of the session. The only change would be the election date, which would be pushed back to November 2008 if lawmakers give their approval sometime in the next 12 months.

The earlier measure passed the state Senate by a party-line vote of 21-11 with Sen. Jason Wilson, a Democrat from Columbiana, joining the majority. It did not find enough support to pass the other chamber, however, failing in the House, 56-42. Sixty votes were needed.

Eminent domain refers to the process by which government entities take possession of private land, generally for public uses.

Coughlin's proposal would ban the use of eminent domain for economic development - that is, for a government entity to take land from one private property owner and transfer it to another for redevelopment. And it would empower the Legislature to set regulations for eminent domain, including in cities where home rule allows standards to be established locally.

Legislation was approved by the House and Senate and signed by Gov. Ted Strickland earlier this summer changing state law on the use of eminent domain. But the new law, which will take effect October, will not apply to home-rule municipalities.

Through his joint resolution, Coughlin hopes to place that issue before voters, in the form of a constitutional amendment.

"I think we need to continue to make the case that this is an important issue," he said. "It's really the difference between looking like you are for property rights and actually being for property rights."

Coughlin said he intends to work with House Democrats who may be on the fence on the issue with hopes of convincing them to change their votes on the reintroduced resolution.

"People who live in cities should have the same guarantees people in townships have," he said.

Bedford OH Record-Courier: http://www.recordpub.com

Pulte development could be last of its kind: Rio Rancho NM Observer, 8/15/07

City leaders not fazed by blighting restrictions

By Tom Treweek

Pulte Homes opened its model village last Saturday, signifying the beginning of home sales for the master-planned community, but because of recently passed state laws, it may be the last large-scale residential development in Rio Rancho.

The Loma Colorado community, situated mostly between Loma Colorado Drive and High Resort Boulevard, sits on 433 acres of land obtained through the city's use of eminent domain.

Earlier this year, the state Legislature passed, and Gov. Bill Richardson subsequently signed, a bill banning the use of eminent domain to provide land for private developers. The measure pleased local landowners, who worried the city would take their property, but Rio Rancho officials have always been more concerned with antiquated platting created by AMREP at the city's inception.

Now, however, two Rio Rancho mayors, both former supporters of the measure, are nonchalant regarding the restriction of eminent domain powers.

Mayor Mike Williams, appointed only three days before Pulte's grand opening, praised the process that led to the Loma Colorado project.

"What has resulted is the first master-planned community to be built by a single builder/developer in the metro area," Williams said before the ribbon cutting ceremony. "This approach has yielded an impressive community that will not only feature homes that have triple energy efficiency and conversation certifications, but will also include 90 acres dedicated to parks, trails and open space."

On Monday, however, Williams said community developments would happen on their own. The only obstacle, he said, was infrastructure, as there are many areas of the city with no roads or utilities. In order to foster development, Williams said, the city would be willing to consider special assessment districts.

"If we have to, we'll SAD the whole city - the undeveloped parts," he said.

Likewise, former Mayor Jim Owen, also a proponent of the use of eminent domain for economic development, said the build-out will still happen, only slower.

"It will not happen very quickly," he said. "Consolidating those properties is a difficult prospect."

Owen said the economy was as prohibitive to creating such a community as the lack of infrastructure.

"It would be difficult to have a master plan," he said. "With the housing market the way it is today, I don't see anyone jumping at that."

Rio Rancho NM Observer: http://www.observer-online.com

In VF appeal, these are the deciders: Telluride CO Daily Planet, 8/15/07

Who’s on state’s highest court, and how they rule

By Pat Healy

Sometime today, perhaps at this very moment, a bundle zips from a Denver law firm to the offices of the Colorado Supreme Court. It is a copious legal brief, studded with footnotes and precedents, that aims to keep the Valley Floor out of Telluride’s hands.

It is also the opening salvo in a constitutional battle between Telluride and the owners of the Valley Floor that will play out in the state’s highest court. There in Denver, seven justices will decide whether Telluride has the right to condemn the Valley Floor using eminent-domain powers.

After years of local debate, legal skirmishes and fevered fundraising, the fight for the $50 million expanse at Telluride’s front door will likely rest with these robed seven.

So who, exactly, are the judges who will decide the case? What do they think about eminent domain? Are they conservatives or liberals? Can a haruspex read Telluride’s future in the entrails of past decisions?

Well, you can try.

Five of the seven justices were appointed by a Democratic governor. Only two — justices Nathan B. Coats and Allison Eid — were appointed by a Republican, and they are likeliest to be in the minority, issuing dissenting opinions.

Most of the court’s opinions are unanimous, but it does cleave broadly along ideological lines, according to an analysis by Denver attorney Andrew Oh-Willeke.

He identified justices Mary Mullarkey, Gregory J. Hobbs, Alex J. Martinez and Michael L. Bender as the four that represent the court’s liberal majority. Justices Eid, Coats and Nancy E. Rice make up the conservative minority.

When the court splits, the liberal block tends to stick together and carry the day, Oh-Willeke found.

All of this seems to favor Telluride. As a legal issue, eminent domain isn’t necessarily as polarizing as, say, the death penalty, speech in schools, gay rights or medical marijuana.

But if the U.S. Supreme Court is any roadmap, when justices divide on eminent domain, conservatives tend to favor landowners and liberals tend to favor governments. That was the case in the high court’s infamous 2005 Kelo decision, when a 5-4 split court allowed a Connecticut town to condemn land for economic development.

But the Valley Floor case is about more than eminent domain. It’s about power, and the sources of power.

The court will examine whether a 2004 state law bars Telluride from condemning the Valley Floor. And it will examine whether that law is stronger than the state constitution that imbued those powers in the first place.

These arguments will focus on the so-called Telluride Amendment, which was tacked onto a broader eminent-domain law. The Telluride Amendment said home-rule municipalities (like Telluride) could not use eminent domain to take land outside their borders for open-space uses (like the Valley Floor).

This winter, after a jury trial set the Valley Floor’s price at $50 million, the town raised that money and deposited it with the court, which normally would have sealed the process. But SMVC appealed Telluride’s right to take the land, saying a district judge was wrong when he declared the Telluride Amendment unconstitutional and allowed the condemnation to proceed.

Since the justices won’t talk about upcoming cases, prior decisions are the best way to light the hallways of their thinking. But on this issue, there’s only a thin gruel of precedent, said land-use attorneys.

“There aren’t a lot of tea leaves to read,” said attorney Mark May. “There’s just not that much out there.”

In the past five years, the court has considered only a handful of eminent domain cases. And it’s hard to see patterns in their few, mostly unified rulings.

In 2004, the high court tossed out a Jefferson County condemnation case, saying that a quarry lake was no longer blighted and could not be taken.

A few months later, the court ruled that the Colorado Department of Transportation and Pitkin County had the authority to condemn private property for a parking structure.

May, who said he’d put his money on Telluride in the Valley Floor appeals, is looking forward to the court fight and the new law that will emerge from it.

“I think it’s going to be fascinating to see how the court decides this case,” he said.

Telluride CO Daily Planet: http://www.telluridegateway.com

K Street land deal hits legal setback: Sacramento CA Bee, 8/16/07

Sacramento is unlikely to succeed in bid to force developer to swap property, judge finds

By Terri Hardy

A judge's ruling Wednesday dealt a major blow to development of two critical blocks on the K Street mall in downtown Sacramento, setting the stage for a potentially lengthy legal battle or an eminent domain fight.

Sacramento Superior Court Judge Loren McMaster found that the city wasn't likely to prevail in a lawsuit to force a development team headed by property owner Moe Mohanna to go through with an agreed-upon land swap.

The city wanted the exchange so that a development team fronted by Joe Zeiden, owner of the Z Gallerie furniture retail chain, could revamp the historic buildings in the 700 block of K Street and install them with well-known retailers.

The exchange would have paved the way for Mohanna's team to transform the street's 800 block with condos and retail.

But McMaster found that a fire and demolition of buildings in the 800 block lowered the property value and wouldn't have resulted in a fair exchange.

The city's lawsuit still is pending, but the ruling will trigger discussions on the next steps, said James Gilpin, the private attorney representing the city. Options include the city using its powers of eminent domain, he said.

"We're at a fork in the road," Gilpin said. "We have to decide which way to go to get K Street redeveloped."

Gilpin said it was possible to go forward with the lawsuit, and noted that not all evidence had gone to McMasters before he made his ruling.

Mayor Heather Fargo, through a spokeswoman, said she hadn't been briefed on the ruling and could not comment.

The attorney representing the Mohanna team called the lawsuit "frivolous" and said the victory Wednesday all but kills the land swap. And, they said they are preparing for a fight.

"If they try it (eminent domain) we'll be ready for that, said Myron Moskovitz, attorney for Mohanna and his team.

"My clients want to see the redevelopment of K Street. They have the ability to redevelop the 700 block themselves, and they'd still like to do that."

If the case goes forward, it would likely take a year to go to trial, Moskovitz said.

City officials have said the land swap is crucial to make redevelopment possible in the area. The city already has spent more than $24 million to speed up the process by buying property in the area from other owners and relocating merchants.

"At this point we're left with scattered parcels of ownership," said Leslie Fritzche, the city's downtown development manager. "We're left to explore our options. Do we fold our tent, lick our wounds and go home? I don't know."

Wednesday's setback could also mean developer Zeiden pulls out of the project. Fritzche said Zeiden has so far remained committed, but they would have to look now at whether he wants to go forward if land can't be consolidated.

Zeiden's spokeswoman, Wendy Hoyt, did not return a call for comment.

Redeveloping the 700 and 800 blocks, among downtown's most blighted blocks, is crucial and the main concern for the Downtown Sacramento Partnership, said executive director Michael Ault.

"Whatever the ruling, progress has got to be the priority," Ault said. "Further legal wrangling impacts our ability to move forward."

Movement has been slow in coming. In January 2005, the city took a get-tough approach.

It gave property owners of the run-down businesses and empty lots a tight deadline to produce viable redevelopment plans or face the possibility that the city would appropriate the property under the power known as eminent domain.

In court Wednesday, the Mohanna team's attorney complained to the judge about the tactics, and said his clients didn't like the land swap deal.

"(The city) said 'you're not good enough, we're going to take it away from you and if you don't like it we'll use eminent domain,' " Moskovitz said. "They were under pressure, under threats."

After a fire in November and subsequent demolition, Mohanna has said banks have been unwilling to transfer $4 million in loans he has on property in the 700 block to the 800 block. Mohanna went to the city to ask for more financial help but that was rejected, he said.

"My client was left with rubble," Moskovitz said.

At issue in Wednesday's hearing was a legal document the city filed against the properties that were to be part of the exchange. The "lis pendens" warn the land is tied up in litigation and make it difficult for properties to be sold or for money to be borrowed on the land.

The judge ruled that the lis pendens be removed.

Mohanna also has filed a countersuit against the city, seeking to recover damages. His attorney said he's losing $40,000 in monthly rent from tenants the city evicted.

And Mohanna is suing Zeiden, claiming the developer was negligent in his oversight of his buildings, leading to the fire.

Despite these complaints, Mohanna's team hasn't said officially it won't accept the land swap.

"We're not claiming the agreement is terminated," Moskovitz told the judge. "Maybe we will, and maybe we won't."

Sacramento CA Bee: http://www.sacbee.com